APPENDIX

Annual Report

APPENDIX

Conclusions of the International Conference relationship between Ombudsmen and Judicial bodies

We, representatives of National Human Rights Institutions, Ombudsman Institutions included, gathered on 12 and 13 November in Ljubljana, at the conference on “The Relationship between Ombudsmen and Judicial Bodies”, have exchanged experiences and views on the role of the ombudsman in relation to judicial bodies. We are of the opinion, that it is of particular importance for countries in transition, some of which may be faced with unstable legal systems, a short tradition of independence of the judiciary and ongoing reform of state bodies, that the state policy in the field of human rights promotion and protection by judicial and non-judicial mechanisms be elaborated in conformity with the Recommendations (i) NÂ° R (85)13 and (ii) NÂ° R 97(11) of the Committee of Ministers of the Council of Europe to member States on (i) the institution of the ombudsman and (ii) the establishment of independent national institutions for the promotion and the protection of human rights, as well as the Recommendation NÂ° R (94) 12 on the independence, efficiency and role of judges, and with the jurisprudence of the European Court of Human Rights.

We adopt the following

Conclusions:

1. In the performance of their judicial function, judges are independent under the law, and their decisions should not be the subject of any revision outside appeals procedures as provided for by law. The executive and legislative powers should ensure that judges are independent, and that steps are not taken which could endanger the independence of judges. It should also be stressed that judges are independent in the public interest.

2. In democratic countries, with an established system of division of power, and even more so in countries with a more recent tradition of democracy and the rule of law, the independence of the judiciary is important since the courts are more sensitive than the other branches of power to encroachment by other state bodies. Yet, as concerns the non-adjudicative functioning of courts, there may be a need to improve the efficiency, while fully respecting the independence of the courts. This can only contribute to increased confidence held by the public in the judiciary and to the legitimacy of the judicial branch of power. The assistance of bodies such as the ombudsman, which are external to the judicial power, may play an important role in this regard.

3. In our countries, the number of judicial proceedings is growing, which indicates increasing contact by individuals with judges and courts. In this way people are becoming increasingly aware of how important the actions and decisions of judges are for them, especially as concerns human rights protection. In this development Ombudsmen are important allies to the courts, since they can help to increase awareness of the human rights issues and promote improvement of the efficiency of the administration of justice.

4. The powers of the ombudsman in relation to the judicial branch of power may only be such that they do not jeopardise the independence of judges and their impartiality in making judicial decisions. The intervention, where permitted by law, of the ombudsman in an individual matter being dealt with by a court must respect complete independence of the court from any kind of outside influence in the adjudicative functions of the court, but may address procedural aspects of the administration of individual cases. We appreciate that in some countries, ombudsmen have the possibility to present courts with their opinions in the role of "amicus curiae".

5. In cases where the law does not provide any special powers to ombudsmen in relation to the courts, ombudsmen may nevertheless, under their general powers, express views concerning the functioning of the judicial system.

6. It is not the ombudsman’s role to act on behalf of an individual in court. Legal remedies must be used first and foremost by the individual affected. Yet, whenever an individual for whatever reason does not have effective access to such remedies, it is appropriate for the ombudsman to have the capacity to verify whether there has been any violation of human rights. Such a possibility is provided in some countries by the constitutional complaint.

7. In countries in transition, which may be faced with outdated, deficient and non-harmonised regulations, as in countries with established democracy, it is important that the ombudsman may also contribute to the development of the legal order. For this reason it is important for ombudsmen that they have the capacity to propose an assessment of constitutionality or legality of regulations before the constitutional court. In this way the ombudsmen may help to eliminate systemic deficiencies in regulations which may affect negatively, or even violate the rights of individuals.

8. It is important to maintain and strengthen the independent position of ombudsmen in relation to other branches of power. In this respect the financial independence of the ombudsman is not least important, since in some countries the effective work of the ombudsman is actually rendered impossible through the limiting of funds. It is therefore important for the ombudsmen to be able independently to propose the budget of the Ombudsman Institution. Legislative provisions outlining the principles of budgetary allocation, including the salary of the ombudsman, should be included in the legislation on the Ombudsmen to guarantee the stability of the institution.